from the gun-to-own-head,-Kiss-Trust-warns:-'don't-laugh.-you're-next.' dept

Once again, it's time to discuss bogus C&D notices, specifically those that acknowledge Section 230 protections before blithely continuing on with the legal threats as though it has absolutely no bearing on the subject at hand.

A few weeks ago, a flurry of registered letters and FedEx packages started arriving at the Mustache residence. They were from a law firm representing a company who didn't like something that had been said by a member of the Forum section of this website.

How did they even find out about this conversation, you might ask? Through Google searches. After all these years, this website has garnered sufficient page rank that when we talk about something, it shows up high in the search engine rankings. The company was apparently Googling their own name, found something they did not agree with, and decided they wanted to silence the critics.

The first letter that arrived wasn't sent by a lawyer, but by Glenn Armand, the Chairman of Eastern Point Trust Company, which owns and operates Kiss Trust, the entity besmirched by a forum member's comment. With the introductions made, the vagaries commenced:

It has come to our attention your website's www.MrMoneyMoustache.com has a forum entry http://www.mrmoneymustache.com/forum/ask-a-mustachian/kiss-trust-12422/msg196528/#msg196528 titled "Kiss Trust" which contains numerous false and flagrantly defamatory statements regarding Kiss Trust. Additionally, these posts infringe on our trademarks and copyright in violation of the DMCA.

Note that Armand fails to point out (other than providing a link to a post that has since been locked down by the site owner) any specifics about the "numerous false and flagrantly defamatory statements." (The comment in question appears to be this one, as the wording "scam" and "marketing ploy" are mentioned directly by other, less stupidly-written, letters.)

(There's another comment mentioned directly in this letter "toxic rates" but that one isn't addressed in subsequent communication.)

Also note that the DMCA has nothing to do with trademarks and that defamatory statements rarely violate trademark and copyright law directly. This appears to be Armand throwing every IP-related term at the wall and hoping the resulting mess would scare MMM into deleting the offending post(s).

The letter then attempts to appeal to the site owner's "reasonableness" before making unreasonable requests… like preventing the posting of anything related to Kiss Trust by forum members… in perpetuity. It also cites the Lanham Act, somehow claiming that forum members' posts involve MMM in "deceptive business practices" because his site is ad-supported.

It also mentions another post where a user says Kiss Trust's fees are "positively toxic" as compared to a 529 plan for purposes of college savings, something that would certainly be a statement of opinion -- unless Armand somehow believes this person is stating that opening a Kiss Trust account would literally poison or otherwise physically debilitate the account holder. Plus, it includes a comparison, meaning that a subjective balancing act has been performed by the commenter, who found (subjectively) Kiss Trust's terms wanting.

Then Armand decides the forum posts are "articles," not comments, and claims (without providing specifics) that everything in question (which could be almost anything due to the lack of specificity) is "without a doubt" false and derogatory. He then approaches the trademark/copyright angle, re-asserting that defamation somehow infringes on both.

So, the site owner decided to take down the original thread pending legal advice, while also recognizing the threatening letter was almost completely without merit -- especially in terms of Section 230. He also started a thread to discuss the legal threats. Once that went live, the legal mail came pouring in.

The next letter came from the law offices of Mark B. Williams, and this one ignores the posts mentioned in the previous letter and focuses instead on MMM's new forum thread about Kiss Trust's legal threats. This one cites "tortious interference, trade disparagement, conversion and libel" as being the issue and, unbelievably, threatens to drag in RICO claims if the alleged behavior continues. The letter asks for the removal of the "blog" (which is a forum post) and, again, that MMM's owner prevent anyone from talking about Kiss Trust for as long as either party exists.

The final (so far...) letter -- this one from the law firm of Robinson|Robinson LLC -- is the one that mentions the applicable Section 230 protections. According to this letter, Kiss Trust has convinced its legal representative that MMM has "chosen to post and re-post" comments that are "defamatory per se," thus depriving the site of these protections. Apparently, running a forum that requires registration is no different than "intentionally encouraging illegal or actionable" (the lawyer's words) posts. That leads to this, um, interesting paragraph.

The statement that my client's business is a scam and a marketing ploy that was posted and then re-posted by by you on mrmoneymustache.com, is a clearly false statement published and circulating throughout the google search engine and has caused my client severe economic harm.

Now, while this attorney correctly cites some of Section 230's limitations (via court opinions for somewhat "relevant" cases), he decides, based solely on some magical equation, that MMM has crossed over into the realm of "information content provider," and is no longer protected. But that's a pretty significant misreading of the law. Unless MMM directly edited the comment in question to change it to something disparaging, or Section 230 still provides protection, even if MMM maintains control over what third-party posts are allowed to appear within the forums (a.k.a., moderating).

The lawyer goes on to drag RICO statutes into the mix, which is about as relevant to the allegedly defamatory comment as the chairman's earlier complaints about trademark and copyright violations. There is nothing in the RICO statutes that even remotely applies to third-party content.

Tortious interference arises out of someone preventing someone else from entering a contractual relationship, something Kiss Trust can't even claim in its most fevered dream. The post simply asked for someone's opinion on Kiss Trust and received several answers in return. One highlighted the differences between Kiss Trust's offerings and a 529, while another simply stated the trust was a "scam" and a "marketing ploy." While the second post may prove to be defamatory, the mere mentioning of a business' name by another comment doesn't signal the commenter's intent to utilize its services, making the claim of "interference" specious.

Trade disparagement is far broader, and Kiss Trust may be able to prove that simply by proving the comment was defamatory. However, this will likely result in very nominal damages being awarded unless Kiss Trust can provide evidence linking the comment's appearance to a financial downturn.

While a lot of what's being thrown at MMM is questionable, the main error is the misreading of Section 230 in an attempt to hold the site owner accountable for another person's posting. It would seem that if you're going to quote portions of the statute, you might want to read the parts that directly contradict your assertions.

The good news is that MMM has found legal representation that has already begun punching holes in Kiss Trust's misguided legal "strategy." The other good news, for MMM at least, is that news of the bogus C&D is spreading fast, speeding the "circulation" of Kiss Trust's bullying behavior "throughout the google search engine." MMM's post on the debacle keeps rising in the rankings for search term "Kiss Trust." The post also hit the Top 10 at Hacker News and Popehat twitted it to 12,000 followers. So, I would imagine Kiss Trust is now wondering why it decided to shoot itself in the reputation over something as unnoticeable as a random person's comment in a sea of forum posts.

Even if the comment proves to be defaming, what does Kiss Trust get in return? A company is free to defend its reputation, but it should, at the very least, consider whether the potential reputation damage will outweigh what it's trying to remove. Well, actually, at the very least, it should understand the laws it's attempting to use so that its efforts aren't wasted pursuing the wrong target.